Breath demand only requires reasonable belief

September 30, 2009

By Mike Novakowski

The test for a breath demand is reasonable belief, not a prima facie case, Canada’s highest court has made clear.
In R. v. Shepherd, 2009 SCC 35, a police officer activated his lights and siren after seeing the accused roll through a stop sign and then travel 20 to 25 km/h over the posted speed limit. The vehicle slowed down, then accelerated and changed lanes multiple times over about a three kilometre distance before finally pulling over.
The officer approached and informed Shepherd he was under arrest for failing to stop. Shepherd explained that he didn’t pull over because he thought the police car was an ambulance. The officer noted he looked lethargic, fatigued and had red eyes. He could smell alcohol on his breath and also noted that his movements and speech were slow and deliberate.
The officer formed the opinion that Shepherd was “intoxicated,” read the Charter warning and made a breathalyzer demand. Shepherd provided samples and was charged with impaired driving, over 80mg% and failing to stop for police.

The test for a breath demand is reasonable belief, not a prima facie case, Canada’s highest court has made clear.

In R. v. Shepherd, 2009 SCC 35, a police officer activated his lights and siren after seeing the accused roll through a stop sign and then travel 20 to 25 km/h over the posted speed limit. The vehicle slowed down, then accelerated and changed lanes multiple times over about a three kilometre distance before finally pulling over.

The officer approached and informed Shepherd he was under arrest for failing to stop. Shepherd explained that he didn’t pull over because he thought the police car was an ambulance. The officer noted he looked lethargic, fatigued and had red eyes. He could smell alcohol on his breath and also noted that his movements and speech were slow and deliberate.

The officer formed the opinion that Shepherd was “intoxicated,” read the Charter warning and made a breathalyzer demand. Shepherd provided samples and was charged with impaired driving, over 80mg% and failing to stop for police.

Shepherd was acquitted of all charges at trial in Saskatchewan Provincial Court. Although the officer subjectively believed his ability to drive was impaired by alcohol, the belief wasn’t objectively reasonable given Shepherd’s explanation that he thought the police car was an ambulance. In the trial judge’s view, this explanation was just as valid to explain the erratic driving as the suggestion that Shepherd was impaired by alcohol.

Since the officer did not have the necessary grounds to demand a breath sample, Shepherd’s s.8 Charter rights were breached and the evidence of the breath results were excluded under s.24(2). Furthermore, Shepherd’s explanation also provided a reasonable doubt as to whether he had the intention to evade police when he failed to stop.

A Crown appeal on the impaired driving and over 80mg% charges was unsuccessful. The appeal judge held there was ample evidence to support the finding that the officer did not have objective grounds to make the demand.

A further appeal to the Saskatchewan Court of Appeal succeeded. A majority of the court found the officer had reasonable and probable grounds to believe that Shepherd’s ability to operate a motor vehicle was impaired. The majority held that the trial judge failed to sufficiently consider the officer’s opinion that Shepherd was intoxicated and too much weight to Shepherd’s evidence that he thought the police car was an ambulance. The court ordered a new trial.

Shepherd appealed to the Supreme Court of Canada, arguing the officer lacked the requisite grounds to make a breathalyzer demand, thereby breaching his Charter rights. The high court unanimously dismissed the appeal and confirmed the order for a new trial.

Section 254(3) of the Criminal Code... requires that an officer have reasonable grounds to believe that the suspect has committed an offence under s.253 of the Code (impaired driving or over 80) before making a breathalyzer demand, the court stated.

The requirement in s. 254(3) that reasonable and probable grounds exist is not only a statutory but a constitutional requirement as a precondition to a lawful search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms.

On the issue of reasonable grounds, the resultant breath demand and testing, the court stated:

Where evidence is obtained as a result of a warrantless search or seizure, the onus is on the Crown to show that the search or seizure was reasonable. A search will be reasonable if it is authorized by law, the law itself is reasonable and the manner in which the search was carried out is reasonable. No issue is taken with the manner in which the search was carried out or the reasonableness of the breath demand provisions in the Code. Rather, the only question is whether the arresting officer complied with the statutory pre-conditions for a valid breath demand...

S.254(3) of the Criminal Code requires that the officer have reasonable grounds to believe that within the preceding three hours, the accused has committed, or is committing, an offence under s.253 of the Criminal Code. The onus is on the Crown to prove that the officer had reasonable and probable grounds to make the demand because the Crown seeks to rely on breath samples obtained as a result of a warrantless search. It would also be impractical to place the burden on the accused because evidence of the presence or absence of reasonable and probable grounds is within the “peculiar knowledge” of the Crown.

There is both a subjective and an objective component to establishing reasonable and probable grounds; that is, the officer must have an honest belief that the suspect committed an offence under s.253 of the Criminal Code and there must be reasonable grounds for this belief (references omitted, paras. 15-17).

In this case there was no dispute about whether the officer had the necessary subjective belief; the issue was whether the subjective belief was objectively reasonable in the circumstances. In finding the trial judge erred and the indicia of impairment did amount at law to reasonable and probable grounds to make the breath demand, the court held:

With respect, it is our view that the trial judge erred in finding that the officer’s subjective belief of impairment wasn’t objectively supported on the facts. The officer’s belief was based not only on the accused’s erratic driving pattern but also on the various indicia of impairment which he observed after he arrested Mr. Shepherd.

The trial judge placed substantial weight on Mr. Shepherd’s explanation that he thought the police vehicle was an ambulance. Leaving aside the fact that this confusion itself can be a sign of impairment, it is important to note that the officer need not have anything more than reasonable and probable grounds to believe that the driver committed the offence of impaired driving or driving “over 80” before making the demand.

He need not demonstrate a prima facie case for conviction before pursuing his investigation. In our view, there was ample evidence to support the officer’s subjective belief that Mr. Shepherd had committed an offence under s.253 of the Criminal Code. We therefore conclude that the officer had reasonable and probable grounds to make the breath demand (para. 23).

Since there was ample evidence to objectively support the officer’s subjective belief that Shepherd’s ability to drive was impaired by alcohol, the officer’s breathalyzer demand was lawful and Shepherd’s Charter rights were not violated. Therefore, there was no reason to resort to s. 24(2).